B.  IEP and Follow-Up













20 U.S.C. § 1401(9) (2008).
1.  Free Appropriate Public Education (FAPE)

Bitter, though bloodless, battles have been waged over conflicting understandings of what constitutes a free appropriate public education (FAPE). According to IDEA, FAPE means special education and related services that:

  • have been provided at public expense, under public supervision and direction, and without charge:
  • meet the standards of the State educational agency;
  • include an appropriate preschool, elementary school, or secondary school education in the State involved; and
  • are provided in conformity with the individualized education program required under Section 1414(d) of this title.
Rule 2.43(1)(a).
In Colorado, “special education” is “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.”

The specific instruction that can be provided is detailed in ECEA Rule 2.43.



Bd. of Educ. v. Rowley, 458 U.S. 176 (1982).
In 1982, the U.S. Supreme Court established the FAPE standard that prevails to this day.  Specifically, an IEP provides FAPE if it is "reasonably calculated to allow the child to receive educational benefits."

Bd. of Educ. v. Rowley, 458 U.S. 176 (1982); Wright,  supra  note 1 at 51.
Under case law, FAPE need not be the best program, nor a program designed to maximize a child’s potential. 



Id.
A parent or child advocate should never ask for what is “best” but for what is “appropriate”, i.e., reasonably calculated to allow the child to make some progress in the classroom.

20 U.S.C. § 1400(c)(5)(A) (2005).
Reference
Although new language in the statute does mandate educating children with disabilities “to the maximum extent possible”, courts interpreting IDEA since 2004 have consistently held that the Rowley standard continues to apply, and that Congress did not alter the FAPE standard to one requiring maximization













Chapman, supra note 15 at 5-6.); 20 U.S.C. § 1401(26).
Related services means transportation and developmental, corrective, and other supportive services such as the following examples:
  • speech-language pathology and audiology;
  • interpreting services;
  • psychological services;
  • physical and occupational therapy;
  • recreation, including therapeutic recreation;
  • social work services;
  • school nurse services in some circumstances;
  • counseling services; and
  • medical services for diagnostic and evaluation purposes only.
20 U.S.C. § 1415(b)(3).
If a child may have been denied FAPE, or the parents and school disagree on an IEP, procedural protections and processes are outlined in 20 U.S.C. § 1415(b) through (j) and 34 C.F.R. §§ 300.500 through 518. For instance, the school district is required to give written notice to the parents, covering specific elements, when it proposes to or refuses to initiate or change the identification, evaluation, or educational placement of a student with disabilities.

reference
However, if the parties disagree on the IEP, it may be worthwhile to begin a temporary interim placement with the services the parties do agree on. In any case, if an IEP already exists, the student would continue to receive services under that IEP until the dispute is resolved.



34 C.F.R. § 300.114(a);
2. Least Restrictive Environment (LRE)

Children with disabilities are entitled to be educated in the least restrictive environment (LRE) possible, that is, with non-disabled children.


L.B. and J.B. v. Nebo School Dist., 379 F.3d 966,  (10th Cir. 2004).
“Educating children in the least restrictive environment in which they can receive a free appropriate public education is one of the IDEA’s most important substantive requirements.” 

20 U.S.C. § 1412(a)(5) (2005); Chapman, supra note 15 at 13.
Before placing students in a separate environment from students without disabilities, such as special classes or separate schools, schools must consider using supplementary aids and services to help them succeed in the regular classroom. 

34 C.F.R. § 300.114(a).
Children should be provided with special classes, separate schooling or other removal from the regular educational environment only to the extent that they cannot be educated in regular classes with the use of supplementary aids and services due to the nature or severity of their disability.






















20 U.S.C. § 1414(d)(1)(A) (2005).
3.The Individualized Education Program (IEP)

An IEP is a written statement for each child with a disability that includes:
  • A statement of the child’s present level of academic achievement and functional performance;
  • A statement of measurable annual goals, including academic and functional goals;
  • A description of how the child’s progress toward meeting the annual goals will be measured;
  • A statement of the special education and related services to be provided to the child;
  • An explanation of the extent, if any, to which the child will not participate with children in regular classes and activities;
  • A statement of appropriate accommodations;
  • An explanation of alternative assessments, if applicable;
  • The date for the beginning of services, and frequency, location, and duration of those services; and
  • Transition goals.



Email from Brad Bittan, Juvenile Law Attorney (May 22, 2008)(on file with author
More details about developing the IEP are provided in 20 U.S.C. § 1414(d)(1)(A) and 34 C.F.R. §§ 300.320 and 324.

Whether children should be educated in regular classes or in self-contained special education settings will vary on a case-by-case basis. Parents or primary caretakers will have unique and important insights into a child’s coping skills, and how the child reacts to an educational environment.












20 U.S.C. § 1414(d)(1)(B);
34 C.F.R. § 300.321.
An IEP should be highly specific in terms of present levels of performance,services, and progress to be achieved.

The IEP team must include:

  • The parents of the child;
  • At least one regular education teacher;
  • At least one special education teacher;
  • A representative of the local educational agency who is knowledgeable;
  • Someone who can interpret instructional implications of evaluations;
  • Other individuals at the discretion of the parent or agency; and
  • The child if appropriate.
Reference
Because people who have special knowledge or expertise regarding the child should be present, either the school or the parents should invite persons involved with the child, such as a foster parent, caseworker, guardian ad litem, or therapist, to participate on the IEP team.

Chapman, supra note 15 at 34-35.
An IEP should address special factors, such as limited proficiency in English or behavioral problems. “If the student’s behavior impedes the student’s learning or the learning of other students, then positive behavioral interventions and supports and other strategies should be considered to address that student’s behavior.”



20 U.S.C. § 1414(d)(4)(A).
4.  Monitoring the IEP

The implementation of the IEP and the student’s progress should be monitored. Under IDEA, the IEP is reviewed on an annual basis


34 C.F.R. § 300.305.
Also, at a minimum, the student must be thoroughly evaluated at a triennial cognitive/psychological/social review. Reevaluation could entail new assessments, or may be made based upon a review of existing information.However, it is not necessary to wait for either an annual or a triennial review.

20 U.S.C. § 1414(a)(2)(A) and (B).
If there is a problem, such as improper implementation of the IEP, or a need for additions or changes, a parent or educational surrogate parent can request an IEP meeting and reevaluation even before the annual review. 



McNaught, supra note 16 at 24.
For example, a child may have additional disabilities, or a disability may have been misdiagnosed.

Rule 4.02(6)(c).
Determining a change of disability or other eligibility may be made only after reevaluation.



20 U.S.C. § 1414(d)(2)(C)(i)(I).
5. School Transfers

If a child with a disability who has an IEP transfers school districts within the state during the academic year, the school must provide the child with comparable services until the old IEP is adopted or a new IEP is developed and implemented.


20 U.S.C. § 1414(d)(2)(C)(ii).
Both schools must take reasonable steps to transfer promptly the child’s records.



See
C.R.S § 22-20-109;
C.R.S § 22-20-107.5.
6.  Administrative Unit for Services

Somewhat complex rules determine which administrative unit is responsible for providing services. 


Rule 2.02(1)(d).
For instance, normally a child is a resident of the administrative unit where the parent or guardian resides, even if the child attends school in another district. 

Rule 2.02(1)(c).
However, there are exceptions. For instance, if the child is in a foster care home, the child is a resident of the administrative unit where the foster care home is located. 

Email from Maureen Wirth, Colorado Department of Education (May 19, 2008, 9:27 a.m.)(on file with author).
When a student is placed in a residential treatment facility, the administrative unit of residence is determined by where the parent or guardian resides, unless the student is an “educational orphan,” in which case the administrative unit of attendance, based on where the facility is located, is responsible. Place of residence is defined completely in ECEA Rule 2.02.